2018 P.27

STATES OF JERSEY

r DRAFT EMPLOYMENT (AMENDMENT

OF LAW) (No. 2) (JERSEY)

REGULATIONS 201-

Lodged au Greffe on 6th February 2018

by the Minister for Social Security

STATES GREFFE

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P.27/2018

DRAFT EMPLOYMENT (AMENDMENT OF LAW)

(No. 2) (JERSEY) REGULATIONS 201-

REPORT

SUMMARY OF FAMILY-FRIENDLY PROPOSALS

The Draft Employment (Amendment of Law) (No. 2) (Jersey) Regulations 201- (“the

draft Regulations”) would amend the Employment (Jersey) Law 2003 (“the

Employment Law”) to extend the family-friendly employment rights, as follows:

CURRENT RIGHTS SEPTEMBER 2018

Maternity leave 18 weeks

2 weeks compulsory leave

paid at 100% of pay and

either 6 weeks unpaid leave

with no qualifying period or

16 weeks unpaid leave with a

15 month qualifying period.

26 weeks

26 weeks of leave of which

6 weeks paid at 100% of

pay by the employer, both

with no qualifying period.

Parental leave 2 weeks unpaid leave, no

qualifying period.

26 weeks of leave of which

2 weeks paid at 100% of

pay by the employer, both

with no qualifying period.

Can be taken in up to

3 blocks of leave.

Adoption leave Same as maternity and

parental leave for adoptive

parents.

Paid and unpaid leave

equivalent to maternity

leave and parental leave.

Ante-natal -

father/partner

No right to time off to attend

appointments.

Unlimited attendance at

appointments – up to

10 hours paid, the rest

unpaid.

Flexible

working

Right to request for

employees with caring

responsibilities, subject to a

15 month qualifying period.

Right to request for all

employees with no

qualifying period.

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BACKGROUND

The proposed amendments to the Employment Law via the draft Regulations are

based on a recommendation that was presented to the Minister for Social Security by

the Employment Forum (“the Forum”) in December 2017.

The Forum is a non-political, independent body which was set up under the

Employment Law to consult on matters relating to the Employment Law at the

direction of the Minister for Social Security. The members of the Forum are

representatives of employers, employees and independent members.

In August 2016, the Minister directed the Forum to consult on extending the existing

family-friendly employment rights, which came into force on 1st September 2015.

This maintained a previous Ministerial commitment to review the rights one year after

they came into force. The Minister directed the Forum to consider a number of

improvements, including longer periods of maternity, parental and adoption leave;

paid periods of leave; removing the qualifying period for the right to leave; antenatal

appointments for the father/partner; and to remove the qualifying conditions for the

right to request flexible working.

The Forum consulted during the period January to March 2017 and received

331 written responses, as well as detailed comments from a number of public

stakeholder meetings. The Forum delivered its recommendation to the Minister on

15th December 2017, which the Minister has presented as a Report to the States

(R.140/2017).

The Forum recommended a number of improvements to the family-friendly

employment rights that are intended to improve the position for parents in the

workplace, give families more choice and flexibility, and encourage gender balance in

childcare roles. The Forum’s intention was to recommend a two-staged approach with

relatively straightforward changes in September 2018, and then more significant

changes in September 2019. This took into account the short period of notice for the

first stage of changes and to give employers time to prepare for the second stage of

changes. A summary table of all the Forum’s recommended changes to the

Employment Law is provided in Appendix 2 to this Report.

The Minister has accepted all of the Employment Forum’s recommendations for

changes to the Employment Law. Many of the changes can be achieved swiftly with

minor amendments via these draft Regulations. This is because family-friendly rights

are already established in the Employment Law. Some of the changes that had been

recommended for introduction in September 2018 will require primary law

amendments and changes that cannot be drafted in time for debate before the coming

election, and so they have been included in the second stage. The Minister’s intention

is to bring those further changes to the States Assembly for approval later this year so

that all of the changes are in place by September 2019, as the Forum had

recommended.

To ensure that most of the recommended improvements are available from

1st September 2018, the Minister has lodged for debate the following changes to the

Employment Law that can be made by Regulations:

By Regulations, in force September 2018

1. Increase maternity, adoption and parental leave to 26 weeks.

2. Increase paid maternity leave to 6 weeks.

3. Introduce 2 weeks of paid parental leave.

4. Introduce 6 weeks of paid adoption leave.

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5. Introduce antenatal appointments for the father/partner.

6. Extend the right to request flexible working to all employees.

The Minister has requested law drafting for the following additional changes to the

Employment Law that would be debated by the States later in 2018, to come into force

in September 2019:

Primary law amendment, in force September 2019

1. Provide 52 weeks of parental leave (combining maternity, adoption and

parental leave) for all parents.

2. Provide equivalent leave for the intended parents in a surrogacy situation.

3. Introduce time off for appointments for adoptive and intended parents.

4. Introduce breastfeeding rights (breaks and workplace facilities).

5. Introduce a right to paid absence on health and safety grounds.

Minister’s response to Forum’s recommendation

Having carefully considered the Employment Forum’s unanimous recommendation

relating to family-friendly employment rights, the Minister is satisfied that the Forum

has taken a balanced view of all of the evidence. The Minister is pleased to see that the

Forum received a good response to this consultation, particularly from parents, many

of whom provided detailed responses based on their own experiences of the current

employment rights.

The Minister considers that the overall package of recommendations represents a

much-needed and significant step forward. The Minister accepts the Forum’s position

that the period of leave can be increased to 52 weeks by September 2019, in 2 stages,

with limited financial impact on employers. The Minister had some initial reservations

about the impact of a 6 week period of maternity leave to be paid by the employer,

which is an additional 4 weeks of paid maternity leave on top of the current 2 weeks.

The Forum stated that it would have preferred to recommend more than 6 weeks of

paid leave given the strength of support in the consultation, but the recommendation

was balanced in view of the cost to business.

The Minister notes that, in the UK, a statutory maternity fund was created through

increases in employers’ contributions. Most employers are able to recover 92% of the

statutory maternity pay. Employers in Jersey may deduct the value of Maternity

Allowance – which is currently £209.51 per week – from any maternity pay. A major

review of Jersey’s Social Security scheme is underway, and public consultation

in 2017 has focused on parental benefits. Any additional benefit costs would need to

be funded, for example, through an increase in employer contributions.

The current family-friendly rights, introduced in 2015, provided a cautious first step to

enable mothers to recover from childbirth, establish breastfeeding and to provide

fundamental rights, including the right to return to the same job and protection against

detriment and dismissal. The latest recommendation from the Forum is a much bolder

step. The Minister agrees with the Forum, that while this will be a significant change

for some employers, it is vital that the statutory periods of paid and unpaid parental

leave are increased as quickly as possible.

The Forum has not recommended, and the Minister does not propose to include, a

small business exception. If small businesses were to be exempt, any new rights would

be ineffectual given that around three-quarters of local businesses employ less than

6 employees in Jersey. If employees need legislative protection, it should generally be

available to them irrespective of the size of an employer. The trend in employment

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laws in other jurisdictions has been to move away from small business exemptions. In

the UK, for example, a limited exception relating to the right to return to work after

maternity leave was abolished in 1994.

Even without specific employment rights, pregnancy and childbirth brings

administrative implications for employers, particularly as Jersey has a high proportion

of women in the workplace (85% according to the Jersey Lifestyle and Opinions

Survey for 2016). It is expected that the extended rights can create genuine benefits

for employers in terms of productivity, retaining skills and reduced administration

costs. If the draft Regulations are adopted, JACS will help employers to prepare for

the changes, with guidance on the website, advice on changing policies and

procedures, template application forms, public and private training sessions and the

JACS outreach service will continue to support small businesses.

The draft Regulations would extend employment rights to provide parents with more

choice and flexibility to help meet their work and family responsibilities and promote

gender balance in parenting, while ensuring that businesses in Jersey are not unduly

affected. The potential benefits to the proposed extension of the family-friendly rights

include –

● ensuring that fathers and partners can take time off work to attend antenatal

appointments for early investment in the child’s welfare

● enabling the father/partner to better support the mother by introducing more

flexibility as to when parental leave may be taken

● greater choice and flexibility to enable parents to make arrangements to suit

their own family and financial circumstances

● benefits for child health by spending more time with one or both parents in

their first year (e.g. bonding and cognitive development)

● increasing the likelihood of exclusive breastfeeding for 26 weeks, improving

child health and development

● greater economic stability for the family, with both parents entitled to take a

period of leave and return to the same job

● economic benefits from measures that allow working parents to more

effectively combine their parenting responsibilities with work

● staff retention – minimise the risk of losing valuable staff members and loss of

skills, reduced turnover and training costs

● improved staff morale and productivity

● reducing discrimination against women in employment and recruitment

through greater gender balance in parenting

● encouraging a change in workplace attitudes and practices towards early and

continued involvement of the father/partner in child care

● family-friendly workplaces become more commonplace.

Family-friendly rights in the workplace are closely linked with protection against sex

discrimination. ‘Sex’ and ‘pregnancy and maternity’ were introduced as protected

characteristics under the Discrimination (Jersey) Law 2013 in September 2015. Any

less favourable treatment which has its root cause in pregnancy is likely to be seen by

a Tribunal as direct sex discrimination, as pregnancy is a gender-specific condition.

Without sex discrimination legislation, the proposed family-friendly legislation would

protect parents who are already working, but there would be a risk that parents

(women of childbearing age in particular) may suffer in recruitment, particularly if

employers consider the family-friendly rights to be onerous.

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With the proposals to bring parity in parental leave, providing 26 weeks of leave

for both parents from September 2018 and 52 weeks of parental leave from

September 2019, it is anticipated that employers are less likely to discriminate against

women in recruitment and employment as men start to take more parental leave. In

theory, a man is just as likely as a woman to request 52 weeks of parental leave.

However, it is recognised that it may take some time for this shift in attitudes to take

place.

THE DRAFT REGULATIONS

The draft Regulations would introduce the following changes to the Employment Law

from 1st September 2018 (set out in points 1 to 5 below).

1. Antenatal appointments for the father/partner

Pregnant employees already have the right to take paid time off work to attend

antenatal care appointments. The father of the child, or the partner of the mother,

currently does not have the right to take time off work. As recommended by the

Forum, the draft Regulations would extend the right so that the father/partner has the

right to take time off work to attend local antenatal appointments with the mother, and

up to 10 hours of that time off must be paid. The intention is to enable fathers and

partners to be more involved with their children from the early stages, and to ensure

that they have the opportunity to do so where their employer might not otherwise give

permission. JACS guidance will provide more details to help employers manage this;

for example, what an employer might expect in terms of a reasonable amount of time

off, and that employers should be notified in advance of the dates and times of

appointments, where possible.

2. Maternity leave

Women currently have the right to a maximum of 18 weeks’ maternity leave,

including 2 weeks which must be paid by the employer at the normal rate of pay1. The

draft Regulations would increase the period of maternity leave to 26 weeks, to include

6 weeks of leave which must be paid by the employer at the normal rate of pay.

Increasing the period of statutory maternity leave to 26 weeks is in line with the

recommendation of the World Health Organisation for 26 weeks of exclusive

breastfeeding.

An employee would be entitled to take up to 26 weeks of maternity leave, including

6 weeks of paid leave, irrespective of her length of service with the employer. The

removal of the qualifying period that currently applies to 10 weeks of the maternity

leave means that the right will apply to a wider group of working women. The Forum

recommended that maternity leave must be a social right to provide more choices for

families, rather than a reward or compensation for long service; women should not

have to protect their employment entitlements when planning to have children to the

potential detriment of their careers.

The 26 weeks of maternity leave will continue be available to take in one block,

starting no earlier than the 11th week before the expected week of childbirth. As

currently, a woman must tell her employer that she is pregnant and wishes to take

maternity leave no later than 15 weeks2 before the baby is due, or as soon as is

1 Subject to the deduction of any Maternity Allowance received by the employee. See page 13

for more details about Maternity Allowance. 2 The 15th week is relevant because legal termination rights are available before the end of the

24th week of pregnancy. Under normal conditions in Jersey, terminations are available until

the 12th week of pregnancy. Terminations between 12 and 24 weeks are only available in

specified circumstances including that the woman’s life would be in danger.

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reasonably practicable. The relatively long notice periods help employers to make any

necessary arrangements.

Most of the existing Law will continue to apply, including the provisions for evidence,

commencement, terms and conditions during leave, intention to return early, work

during leave period, and the right to return to the same job. The Employment Law

currently requires that an employer must not permit an employee to work during her

2 week paid ‘compulsory’ maternity leave period. The draft Regulations will remove

the prohibition on work during this period of paid leave. The Forum recommended

that this provision is unnecessary, ineffective and inappropriate, as it is not the role of

the Employment Law to take a medical position in preventing a woman from working

if she chooses to do so.

3. Parental leave

The Employment Law currently gives employees the right to 2 weeks of unpaid

parental leave, from day one of employment. This right is available to the father of the

child, or the person who is married to, the civil partner of, or the partner of, the child’s

mother or adopter. That person must also expect to have responsibility for the

upbringing of the child. A partner is defined as a person who lives with the mother and

child in an enduring family relationship but who is not an immediate relative.

Based on the Forum’s recommendation, the draft Regulations will extend this right to

provide 26 weeks of parental leave from 1st September 2018, to include 2 weeks of

leave paid by the employer at the normal rate of pay. Pay will be calculated in the

same way as for maternity leave. The employee would have the right to return to the

same job (where that job still exists) after 26 weeks of statutory parental leave.

The Forum recommended that it would be a step too far to move from the current

position of 2 weeks’ unpaid parental leave to 6 weeks of paid leave in

September 2018, particularly in combination with the other recommendations. Parity

in parental rights would be achieved in September 2019.

As with maternity leave, the employee must advise their employer of their intention to

take parental leave 15 weeks before the expected date of birth, unless it was not

reasonably practicable to have given notice earlier. Parental leave will be available to

take within a 52 week period, in up to 3 blocks of not less than 2 weeks each. This is

because, unlike maternity leave, it is expected that fathers and partners are likely to

want to take a short period of leave, such as 2 to 4 weeks shortly after the birth and

another period later, either at the same time as the mother, or after maternity leave has

ended.

The Minister considers that providing longer defined periods of leave for each parent

is an attractive approach. In the UK, take-up of ‘shared leave’ has been low, partly

because women tend to prefer to take all of their maternity leave rather than

transferring it to the other parent. The Minister also notes the experience of parental

leave Sweden where men have been found to be more likely to use a defined period of

leave3. For this reason in particular, the Minister considers that a defined leave

approach may be more successful than a shared leave system in addressing sex

discrimination in the workplace, by enabling both parents to take an equal part in the

responsibility and encouraging a culture change in local workplaces.

The Forum explained in its recommendation that, while many of the respondents

supported a shared leave system, what parents seem to be seeking is more choice and

flexibility to adjust periods of leave to suit their particular family and financial

3 For more information on shared leave in the UK and Sweden, see pages 24–25 of the Forum’s

recommendation.

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circumstances. The Minister hopes that this change to the Employment Law might

help to address the findings of the Jersey Lifestyle and Opinions Survey (2016) that

around two-thirds of men had not taken any parental leave at all, and 92% of men said

they would have liked to have taken more leave (69% of men said they were

prevented from taking more leave because the length of leave was limited by their

employer).

4. Adoption leave

The draft Regulations will ensure that adoptive parents continue to be entitled to leave

which is equivalent to maternity and parental leave. This means that the periods of

leave will be extended so that each adoptive parent may take 26 weeks of leave from

day one of employment. Where there are 2 adoptive parents, one will elect to be ‘the

adopter’ and will take the equivalent of the maternity leave period, to include 6 weeks

of paid leave. The other adoptive parent will take the parental leave period, to include

2 weeks of paid leave. Pay will be calculated in the same way as for maternity leave

and parental leave.

The current notification conditions will continue to apply, in that the employee must

notify the employer within 7 days of having been given official notification of being

matched with a child. Adoption placements often happen at short notice after a couple

have waited a long time to be notified of a suitable placement. There are around 6 to

7 adoptions each year in Jersey (including both local and inter-country adoptions).

5. Right to request flexible working

Employees currently have the right to request a change to their working conditions,

including a change to their hours, times or location of work. This right will continue to

apply, but it will be extended so that more employees have the right to make such a

request. The draft Regulations will remove the 2 qualifying conditions so that the right

is available to all employees, from day one of employment, irrespective of the reasons

for the request.

The Law already requires an employer to deal with such a request appropriately, and

provides a clear process for employers to follow. The employer has the right to refuse

a request on genuine business grounds, and the employee can only make one request

in a 12 month period. While the right is known as the ‘right to request flexible

working’, not all requests will seek flexible hours or flexi-time, but might include

requests for changes to working hours, part-time working, term-time working, annual

hours, compressed hours or different start and finish times.

A ‘Working parent survey 2017’ carried out by the Jersey Child Care Trust found that

48% of respondents said more flexibility from employers would help them meet their

work and family needs. Removing the qualifying period for this right would have no

direct financial implications for employers. The Forum’s consultation responses

supported extending the right to all employees to benefit families and children, as well

as employers and the economy, for reasons including –

“1. To address the perception that flexible working is a benefit for mothers of

young children. If the right is extended to all employees, it may become more

socially acceptable for fathers to make a request and the career penalty for

women may reduce.

2. Helping families to manage life and work – More flexible working options

might help a wide range of people, not just parents, including people with

disabilities, carers, young people seeking entry to the workforce and older

employees in a more gradual approach to retirement.

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3. Flexible working can be offered by employers as an incentive to attract and

retain skilled staff, and as a way of making better use of existing skills.”4

Zero-hour contracts – The Forum noted in its recommendation that a ‘day one’ right

to request a change to the contracted times and hours of work is likely to make a

significant difference to zero-hour contract employees. The Minister is particularly

pleased to propose this change to the Law. The UK government report “Good work:

the Taylor review of modern working practices”5 recommended that zero-hour

contract workers in the UK should have the right to request guaranteed working hours.

The Minister noted that Jersey’s Employment Law already provides a right to request

a change to the terms and conditions of employment relating to the hours, times, or

location of work. However, that right is currently restricted to employees who have

15 months’ service, and only where the requested change is enable the employee to

provide care for another person.

Extending the right to all employees – including those employees working under zero-

hour contracts – is expected to improve the position for employees who would prefer

to work fixed hours each week, while allowing zero-hour contracts to continue to be

used by those who value their flexibility. A request from an employee in such a case

might be based, for example, on the average weekly hours worked over the previous

6 months.

Detriment and dismissal

Employees will continue to be protected under the Employment Law against

detrimental treatment for reasons relating to the new and existing rights, including

pregnancy, giving birth, adoption, requesting flexible working, and seeking to take a

period of maternity, parental or adoption leave. Detriment might include, for example,

changing the working hours of a woman who has recently become pregnant, or not

promoting a man who has recently given notice of his intention to take parental leave.

In addition, the Employment Law provides a number of “automatically” unfair reasons

for dismissal where the normal upper age limit and length of service requirements do

not apply. This includes where the reason or principal reason for a dismissal relates to

an employee’s pregnancy or adoption of a child, requesting flexible working, and the

taking of a period of statutory maternity, paternity or adoption leave.

The 2019 changes

The draft Regulations do not set out the changes that are proposed to come into force

in September 2019. The Minister intends to bring forward a primary law amendment

later in 2018 that would implement the remaining recommendations of the Forum.

The proposed move to a position where parents are each entitled to 52 weeks of leave

is seen as a progressive and inclusive approach where there is parity across periods of

maternity, parental and adoption leave. This would mean that, in September 2019, all

new parents would independently be entitled to 52 weeks of parental leave each

(including the intended parents in a surrogacy arrangement). Extensive redrafting will

be required to align the 3 types of leave.

The proposed new rights relating to breastfeeding (breaks and facilities) will also

provide a significant improvement and will support the 1,001 Critical Days manifesto.

This change will also require a primary law amendment in September 2019. The 2017

Jersey Opinions and Lifestyle Survey found that 62% of adults agreed that employers

4 See page 59 of the Forum’s recommendations. 5 https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-

working-practices

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should provide rest-breaks for breastfeeding mothers, and 60% of adults agreed that

employers should provide facilities for breastfeeding mothers.

The other changes that will be proposed from September 2019 are set out in the table

at Appendix 2 to this Report, and are described in more detail in the Forum’s

recommendation.

States of Jersey policy and strategy

● Social Security Review

The Minister is currently reviewing the benefits that are provided under the Social

Security (Jersey) Law 1974. A major review of the Social Security scheme started in

2016. The review will run over several years and has been timed to allow input into

the development of the next Medium Term Financial Plan which will be agreed in

2019. Any changes to Social Security benefits may bring a potential cost. Public

consultation in 2017 focused on the future of contributory parental benefits and

survivors’ benefits. The results of this part of the review will be published in

March 2018.

● States’ Strategic Priorities

The extension of family-friendly employment rights contributes both directly and

indirectly to a number of the commitments set out in the current States’ Strategic Plan

for 2015 to 2018, which includes the following relevant priorities:

○ Optimising economic growth

Desired outcomes include a skilled workforce aligned to the needs of productivity-led

economic growth, and that all working-age people fulfil their potential in rewarding

employment.

Family-friendly rights help to maximise the potential of the Island’s workforce by

enabling increased participation rates, retention of appropriate skills in the workforce,

and removing barriers to work, including a right to return to the same job on the same

terms and conditions after a longer period of parental leave for both parents, and

opportunities for flexible working for more employees. By introducing provisions to

retain the skills of parents in the workplace and ensuring that workplaces are more

family-friendly, this will help to ensure that locally qualified people are available to

work and will support employers to retain and attract those locally qualified

employees.

○ Improving education

A key area of focus is to support children and families from conception, through the

critical pre-school years, as outlined in the 1,001 Critical Days Initiative, and beyond.

The Strategic Plan notes that: “The ‘1001 Critical Days’ initiative recognises that the

early years of life are a crucial period and key to brain development. The way in

which we care for and treat children during these formative years shapes their lives.”.

The extension of family-friendly rights will support the 1,001 Critical Days manifesto,

giving parents choices relating to their children, providing early investment in the

health of the mother and child in the weeks surrounding childbirth, and ensuring that

antenatal care and breastfeeding do not have to be a financial choice for the mother.

Research indicates that there are links between a period of maternity leave and health

and societal benefits, including stronger mother and child bonding, reduced post-natal

depression, improved child cognitive development, increased rates of immunisation,

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increased rates and duration of breastfeeding, and improved child health and

development in later life6.

Collective responsibility under Standing Order 21(3A)

The Council of Ministers has a single policy position on this proposition, and as such,

all Ministers, and the Assistant Minister for Social Security, are bound by the principle

of collective responsibility to support the proposition, as outlined in the Code of

Conduct and Practice for Ministers and Assistant Ministers (R.11/2015 refers).

FINANCIAL AND MANPOWER IMPLICATIONS

Advice, conciliation and enforcement – JACS will continue to provide an

independent advisory and conciliation service in relation to employment rights from

its annual grant of £363,118 for 2018. The Judicial Greffe holds a separate budget for

the Tribunal Service, which includes dealing with complaints under the Employment

Law. No additional funding or resources would be allocated to these bodies to

specifically to deal with the proposed extension to existing employment rights.

States Human Resources – There are likely to be cost implications arising from the

proposed removal of the qualifying period for paid weeks of statutory maternity,

adoption and parental leave. It is not known how many additional employees will

become entitled and choose to take the periods of paid leave. However, based on a

number of assumptions, the cost is estimated to be around £120,000 per annum7. This

assumes a 25% increase in the number of employees qualifying for and taking

maternity and parental leave8 and a weekly pay figure of £8489. Any costs will be met

from within existing resources.

6 www.europarl.europa.eu/document/activities/cont/201010/20101005ATT85068/20101005AT

T85068EN.pdf 7 13 more paternity leave claims x £848 per week x 2 weeks’ pay (0 weeks are currently paid

with nil service) = £22,048. 29 more maternity claims x £848 per week x 4 weeks’ pay

(2 weeks are currently paid with nil service) = £98,368. Total £120,416. 8 42 additional employees. 165 States employees took maternity leave or paternity leave in 2017 9 The median annual earnings figure for full-time equivalent staff is £44,268 per annum, as

reported on page 54 of the States' Financial Report and Accounts 2016.

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APPENDIX 1 TO REPORT

BACKGROUND INFORMATION

The following background information was presented in the Forum’s consultation on

family-friendly rights, released on 5th January 2017. Footnotes provide updated rates

of benefit, where applicable.

LOCAL STATISTICS

Parental leave – Jersey Opinions and Lifestyle Survey 2016 (“JOLS”)10

o 87% of adults said that parents should be able to share parental leave (84% of

men and 89% of women)

o Reasons for agreeing that leave should be shared were –

o To allow both parents to be involved in childcare (65%)

o To make it easier to fit childcare around work (17%)

o More practical financially (13%)

o 59% of adults said that parents should not be able to share parental leave with

the child’s grandparents

o Of the parents who had taken a period of maternity, paternity or adoption

leave in the last 5 years –

o 18 weeks’ leave was taken on average

o Women had taken an average of 29 weeks’ leave (14 weeks’ paid and

15 weeks’ unpaid leave)

o Men had taken an average of 2 weeks’ leave (2 weeks’ paid leave and

1 week’s unpaid leave)

o Around two-thirds of men had not taken any parental leave

o 8 out of 10 parents would have liked to have taken more leave (92%

of men and 69% of women)

o 69% of men said they were prevented from taking more leave because

the length of leave was limited by their employer

o 71% of women said financial reasons prevented them from taking a

longer period of leave.

Economic activity – Jersey Opinions and Lifestyle Survey 2016 (“JOLS”)

The economic activity rate for all working-age adults is 86% (87% of men

aged 16–64 and 85% of women aged 16–59).

Men were contracted to work 2.5 hours per week longer than women

(37.5 and 35.0 hours on average, respectively).

10 www.gov.je/Government/Pages/StatesReports.aspx?ReportID=2481

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Economic activity – Census 201111

For men, the rate of economic activity (either working or looking for work)

decreased from 86% in 1961 to 74% in 2011.

The economic activity rate for women increased substantially over a 50 year

period, from 37% in 1961 to 61% in 2011. (The economic activity rate for

women in the UK in 2011 was 57%.)

Of the working-age population in Jersey (age 16–64 for men and 16–59 for

women) 82% were economically active.

Over three-quarters (77%) of working-age women were economically active.

Of those who were of working-age but economically inactive, 44% of the

women and 3% of the men were looking after the home.

20% of working women worked part-time compared to 4% of men.

Sex discrimination – Jersey Annual Social Survey 2012 (“JASS”)12

A quarter of respondents said they had been discriminated against at least

once in the previous 12 months. For one in 20 people, the discrimination was

on grounds of gender (5%).

Women were more likely to report having been discriminated against on

grounds of gender (9%) than men (2%).

The most frequently cited location of the discrimination was at work (36% of

respondents) and 23% reported discrimination when applying for a job.

SOCIAL SECURITY BENEFITS

Maternity grant is a lump sum payment which may be paid either before or following

birth to help with the general cost of having a baby. The current rate is £612.5713

which is payable for each baby (including multiple births). To qualify, the mother or

her husband/civil partner must have paid enough contributions for at least 3 months

before the expected or actual date of childbirth. An equivalent grant for adoptive

parents is also available where a person has been granted an adoption order.

Maternity allowance is a weekly benefit paid to help a mother take time off work to

give birth and look after her baby. The full rate per week is currently £204.1914 (the

amount paid is based on the mother’s own contributions), and can be paid for a

maximum of 18 weeks as compensation for loss of earnings while the woman is not

working. Jersey’s maternity allowance is more generous per week than the UK

equivalent, but is available for fewer weeks in total (the UK benefit is paid for

39 weeks at £140.98 per week). There is currently no weekly allowance in Jersey

associated with periods of parental or adoption leave.

The majority of parents who had a baby in 2015 received a maternity grant in 2015.

From 1st January 2015, women have had more flexibility in the timing of their

maternity allowance claim. The Social Security Department’s annual report for 201515

11 www.gov.je/Government/Census/Census2011/Pages/2011CensusResults.aspx 12 www.gov.je/Government/Pages/StatesReports.aspx?ReportID=859 13 Since the Forum’s consultation was released, the rate has been increased to £628.53 per week. 14 Since the Forum’s consultation was released, the rate has been increased to £209.51 per week. 15 www.gov.je/SiteCollectionDocuments/Government%20and%20administration/Social%20Se

curity%20Department%20Minister's%20Report%202015.pdf

◊ Page - 15

P.27/2018

states that this is likely to explain the reduction in the number of claims made in the

latter months of 2014. Between September and December 2014, claims for Maternity

Allowance decreased by 15% on average each month, and claims for a Maternity

Grant decreased by 28% on average each month. This was followed by a significant

increase in the number of claims in January 2015 when the rule change was in force

(see Table 2).

A number of other benefits are available from the Social Security Department to

support families, including Income Support and Home Responsibility Protection.

More information is available on the website16. It is not within the Forum’s remit to

consult on, or to recommend, changes to Social Security benefits.

Table 2 – Maternity indicators, 2011 to 2015

Indicator 2011 2012 2013 2014 2015

No. of Maternity Allowance claims in the year 944 982 894 834 876

No. of Maternity Grant claims paid in the year 1,056 1,011 970 837 1,020

No of Births Recorded 1,102 1,123 1,017 985 997

OTHER JURISDICTIONS

This section provides a high level summary of the main provisions in some relevant

jurisdictions that you may wish to consider when you respond to the survey. In

presenting this information, the Forum is not advocating any particular system or

approach.

Guernsey

From 1st April 2016, the Maternity Leave and Adoption Leave (Guernsey) Ordinance

2016 provides the following statutory rights –

paid time off for antenatal appointments during working hours

basic maternity leave of 12 weeks (includes 2 weeks’ compulsory leave)

enhanced period of an additional 14 weeks’ maternity leave for employees

who have 15 months’ service

the right to return to the same job or a suitable alternative

the partner of an employee who is entitled to basic maternity leave and has

15 months’ service has a right to take 2 weeks’ maternity support leave

maternity allowance at a rate of £150.43 per week for up to 18 weeks.17

Employers in Guernsey are not required to provide paid maternity leave, paternity or

adoption leave. Employers who choose to do so provide such benefits through a

discretionary or contractual agreement, and reference to any such policy must be

included in the statement of the main terms and conditions of employment.

Isle of Man

Family-friendly rights are set out in the Employment Act 2006 and Regulations made

under that Act, including the Maternity Leave Regulations 2007 and the Paternity

Leave Regulations 2007. These include –

paid time off for antenatal appointments during working hours

16 www.gov.je/benefits/maternityfamilysupport/Pages/index.aspx 17 Since the Forum’s consultation was released, the benefits system has changed, and maternal

health allowance and parental allowance are paid at a maximum of £206.43 per week.

Page - 16 ◊ P.27/2018

26 weeks’ Ordinary Maternity Leave (includes 2 weeks’ compulsory leave)

26 weeks’ Additional Maternity Leave for employees with 26 weeks’ service

the right to return to the same job

paternity leave of either one or 2 weeks

adoption leave matching maternity and paternity leave for birth parents

a right to request flexible working for the parents of a child under 6 years old;

the parents of a disabled child under 18 years old; and/or have defined caring

responsibilities; available to employees with 26 weeks’ qualifying service

maternity allowance at a rate of £179.85 per week for up to 39 weeks.

As in Guernsey, employers in the Isle of Man are not required to provide paid

maternity leave, paternity or adoption leave.

UK

Family-friendly rights are provided primarily in the Employment Rights Act 1996, the

Employment Relations Act 1999, the Employment Act 2002, the Work and Families

Act 2006 and the Children and Families Act 2014. These include –

paid time off for antenatal appointments during working hours

unpaid leave for fathers or partners to attend 2 antenatal appointments

for adopters, 5 paid adoption appointments for the main adopter and 2 unpaid

appointments for the other adopter

statutory maternity leave of 52 weeks with no qualifying period of employment

ordinary maternity leave – 26 weeks (includes 2 weeks’ compulsory

leave)

additional maternity leave – 26 weeks

statutory maternity pay – depending on contributions for up to 39 weeks

90% of average weekly earnings for the first 6 weeks

£139.58 (or 90% of average weekly earnings if lower) for 33 weeks18

the right to return to the same job or a suitable alternative

paternity leave of either 1 or 2 weeks with pay at £139.58 per week

adoption leave matching the periods of maternity and paternity leave

a right to request flexible working for all employees with 26 weeks’ service

50 weeks of shared parental leave at £139.58 per week or 90% of average

weekly earnings, whichever is lower.

Maternity rights have been available in the UK for many years. The system of funding

statutory maternity pay in the UK originates from a historic Maternity Fund, which

was funded through increases in employers’ contributions. Most employers are able to

recover 92% of the statutory maternity pay by deducting it from their national

insurance contributions, and small employers can reclaim 103% of payments. An

employee who does not qualify to receive statutory maternity pay may be entitled to

the social security maternity allowance at the standard rate of benefit (£139.58 per

week). Other than 6 weeks’ maternity leave at 90% of pay, the remaining weeks of

statutory maternity pay are paid at the standard rate of benefit.

18 The rate of statutory maternity pay will increase to £140.98 from 1st April 2018.

◊ Page - 17

P.27/2018

Other family-related rights are more recent. Shared Parental Leave (“SPL”) was

introduced in April 2015. This allows eligible mothers, fathers, partners and adopters

to choose how to share time off work after their child is born or placed for adoption.

Parents are still entitled to take maternity, paternity and adoption leave. However, an

eligible mother or adopter may choose to end their maternity/adoption leave early and

opt in to SPL (subject to the 2 weeks’ compulsory leave period). SPL may be taken

between the date the child is born or the date of the placement and ends 52 weeks after

that date. This could involve the mother returning to work for part of the time while

her partner takes leave, and then resuming her leave at a later date, or a partner could

begin to take SPL while the mother is still on maternity or adoption leave.

Other countries and international standards

Most jurisdictions in the world make provision for maternity leave. Different levels of

protection are provided based on length of service and other qualifying conditions.

Leave is often a combination of paid and unpaid periods; where paid leave is provided

this is often subject to a cap, particularly when the pay is provided through a social

security system. In most countries, pay during statutory maternity leave is funded by

the State or health and social insurance schemes, although some countries supplement

that by requiring additional payments from the employer.

The European Union Pregnant Workers Directive (92/85/EEC) came into force

in 1994. It states that: “Employees are entitled to 14 weeks continuous maternity leave

before and/or after delivery … The employment rights relating to the employment

contract must be ensured, including the entitlement to an adequate allowance.”.

The International Labour Organisation (ILO) Maternity Protection Convention, 2000

(183), which came into force in 2002, recommends that a woman “shall be entitled to

a period of maternity leave of not less than 14 weeks.”. It also states that “Cash

benefits shall be at a level which ensures that the woman can maintain herself and her

child in proper conditions of health and with a suitable standard of living.”.

According to the ILO19, there has been an improvement in maternity protection across

the world, with a gradual shift towards leave periods that meet or exceed the 14 week

ILO standard. In 1994, 38% of countries for which information was available provided

at least 14 weeks of maternity leave. In 2013, 53% provided at least 14 weeks of

maternity leave and 23% provided at least 18 weeks’ leave. Between 1994 and 2013

financing of cash benefits through employer liability fell from 33 to 25%. Fifty-eight

per cent of countries now finance maternity leave cash benefits through social

security. In addition to maternity leave, many countries also support working fathers.

Of the 141 countries for which data was available in 1994, the ILO found that only 3%

made provision for paternity leave. By 2013, paternity leave was available in 47% of

167 countries.

Across OECD countries20, maternity leave is an average of around 18 weeks. Almost

all OECD countries have public income support payments relating to the taking of

maternity leave. In some countries (e.g. Australia, Iceland, New Zealand, Norway and

Sweden), there is no separate provision for maternity leave, but provision for a

parental leave scheme instead. In some countries parental leave is a shared entitlement

with specific periods reserved for use by the mother or father. In other countries

(e.g. Austria and Germany) ‘bonus’ weeks of leave are offered as an incentive if both

parents use a certain portion of the total entitlement.

19 Maternity and paternity at work: Law and practice across the world (May 2014)

www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_242325/lang--en/index.htm 20 www.oecd.org/els/soc/PF2_1_Parental_leave_systems.pdf

Page - 18 ◊ P.27/2018

APPENDIX 2 TO REPORT

Recommended changes to the Employment Law

CURRENT SEPTEMBER 2018 SEPTEMBER 2019

Maternity

leave

18 weeks

2 weeks

compulsory

leave paid at

100% of pay

and either

6 weeks unpaid

leave with no

qualifying

period (QP) or

16 weeks unpaid

leave with a

15 month QP.

26 weeks

26 weeks of leave of

which 6 weeks paid at

100% of pay by the

employer, both with no

QP.

2018 REGULATIONS

52 weeks

Parental leave

Available for both

parents.

52 weeks of leave

including 6 weeks paid

leave at 100% of pay

by the employer.

Can be taken in up to

4 blocks of leave.

Also available to

adoptive and intended

parents.

2019 PRIMARY LAW

2019 PRIMARY LAW

Parental

leave

2 weeks unpaid

leave, no QP.

2 weeks paid leave at

100% of pay by the

employer and 24 weeks

unpaid leave, both with no

QP. Can be taken in up to

3 blocks of leave.

2018 REGULATIONS

Adoption

leave

Same as

maternity and

parental leave

for adoptive

parents

Paid and unpaid leave

equivalent to maternity

leave and parental leave.

The elected adopter takes

the paid leave.

2018 REGULATIONS

Surrogacy

leave

No rights for the

intended parents

in a surrogacy

situation.

Paid and unpaid leave

equivalent to maternity

leave and parental leave.

The main intended parent

takes the paid leave.

Ante-

natal –

father/

partner

No right to time

off to attend

appointments.

Unlimited attendance at

appointments – up to

10 hours paid, the rest

unpaid.

2018 REGULATIONS

No further change.

◊ Page - 19

P.27/2018

CURRENT SEPTEMBER 2018 SEPTEMBER 2019

Adoption

appoint-

ments

No right to time

off to attend

appointments.

Unlimited attendance at

appointments for both

parents. Adoptive

parent 1 – paid Adoptive

parent 2 – up to 10 hours

paid, the rest unpaid.

No further change.

2019 PRIMARY LAW

Ante-

natal –

intended

surrogate

parents

No right to time

off to attend

appointments.

Unlimited attendance at

appointments for both

parents. Intended

parent 1 – paid Intended

parent 2 – up to 10 hours

paid, the rest unpaid.

No further change.

2019 PRIMARY LAW

Flexible

working

Right to request

for employees

with caring

responsibilities,

subject to a

15 month QP.

Right to request for all

employees with no QP.

2018 REGULATIONS

No further change.

Breast-

feeding

rights

None Right to request

reasonable breaks and

employers must take

reasonable steps to provide

facilities in the workplace.

2019 PRIMARY LAW

Paid

absence on

health and

safety

grounds

None Right to paid absence

where risk assessment

prevents a pregnant or

breastfeeding employee

from carrying out her

normal job and she cannot

be allocated to other

duties.

2019 PRIMARY LAW

Page - 20 ◊ P.27/2018

Explanatory Note

These Regulations would further amend the Employment (Jersey) Law 2003 (the

“Law”), first to extend the right to request flexible working to all employees i.e. not

only those who have caring responsibilities or who have worked in their employment

for a particular length of time (amendments made to Part 3A by Regulation 2), and

also to enhance the rights of parents to take leave from their employment in

connection with the birth or adoption of a child (amendments made to Part 5A by

Regulations 3 to 13).

In relation to ante-natal appointments, Regulation 4 would amend Article 55B of the

Law to extend the right to time off for such appointments, on fulfilment of certain

conditions, to employees who have a qualifying relationship with a pregnant woman

or her expected child (“qualifying relationship” would be defined by new

Article 55B(4)(c) as the husband or partner of the woman or the father of the child;

“partner” is already defined by Article 55A(1) of the Law). In the case of such

employees the right to paid time off would be limited to a total of 10 hours

(amendments made to Article 55C of the Law by Regulation 5).

In relation to statutory maternity leave and pay, Article 55D of the Law would be

amended by Regulation 6 to increase the minimum paid (“compulsory”) maternity

leave period to 6 weeks (rather than 2), and the period of unpaid (“ordinary”)

maternity leave provided for by Article 55E as amended by Regulation 7 would be

increased to 20 weeks. The total period of maternity leave would thus be 26 weeks.

(A consequential amendment is made by Regulation 3 to the definition “compulsory

maternity leave” in Article 55A(1) of the Law, and further consequential amendments

are made by Regulation 8 (to delete Article 55I(5) referring to a 2 weeks’ period) and

by Regulation 10 to Article 55M; Regulation 8 also takes the opportunity to correct a

typographical error in Article 55I(7).)

The period of statutory adoption leave for which provision is made by Article 55K of

the Law would be similarly increased by Regulation 9 to a total of 26 weeks, of which

the first 6 weeks would be paid.

Parental leave entitlements would be enhanced by the amendments made to

Articles 55N and 55O of the Law by Regulations 11 and 12 respectively: the total

period of such leave would again be 26 weeks, of which the first 2 weeks would be

paid. Article 55O as amended would provide for a default condition that such leave

could be taken in no more than 3 blocks, being a minimum of 2 weeks each in length.

Regulation 13 would insert a new Article 55QA of the Law to ensure that other

arrangements for parental leave reflect those for maternity leave.

Regulation 14 would make consequential amendments to Article 55S of the Law

which deals with the bringing of complaints to the Tribunal. Regulation 16 would give

the title by which these Regulations may be cited, and provide for them to come into

force on 1st September 2018. A transitional provision in Regulation 15 provides that

the extended periods of leave shall have effect only in relation to employees whose

expected week of childbirth or (as the case may be) adoption begins on or after 2nd

September 2018.

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201- Arrangement

◊ Page - 21

P.27/2018

DRAFT EMPLOYMENT (AMENDMENT OF LAW)

(No. 2) (JERSEY) REGULATIONS 201-

Arrangement

Regulation

1 Interpretation ................................................................................................. 23 2 Part 3A amended ........................................................................................... 23 3 Article 55A amended .................................................................................... 24 4 Article 55B amended ..................................................................................... 24 5 Article 55C amended ..................................................................................... 25 6 Article 55D amended .................................................................................... 26 7 Article 55E amended ..................................................................................... 26 8 Article 55I amended ...................................................................................... 26 9 Article 55K amended .................................................................................... 27 10 Article 55M amended .................................................................................... 27 11 Article 55N amended .................................................................................... 28 12 Article 55O amended .................................................................................... 28 13 New Article 55QA inserted ........................................................................... 29 14 Article 55S amended ..................................................................................... 29 15 Transitional provision ................................................................................... 30 16 Citation and commencement ......................................................................... 30

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201- Regulation 1

◊ Page - 23

P.27/2018

DRAFT EMPLOYMENT (AMENDMENT OF LAW)

(No. 2) (JERSEY) REGULATIONS 201-

Made [date to be inserted]

Coming into force [date to be inserted]

THE STATES, in pursuance of Articles 55A(3), 55S(6) and 104 of the

Employment (Jersey) Law 20031, have made the following Regulations –

1 Interpretation

In these Regulations, a reference to an Article by number and without more is a

reference to the Article of the same number in the Employment (Jersey)

Law 20032.

2 Part 3A amended

(1) In Article 15A(1) –

(a) for the words “A qualifying” there shall be substituted the word

“An”; and

(b) after sub-paragraph (c), the comma and the words “and the reason

for the change is to enable the employee to provide care for another

person” shall be deleted.

(2) Article 15A(2)(c), 15A(3) and 15A(4) shall be deleted.

(3) After Article 15A(5) there shall be added the following paragraph –

“(6) Where an employee has any right, arising under the employee’s

contract of employment or otherwise, which corresponds to the

entitlement conferred by paragraph (1) to make an application for a

change in his or her terms and conditions of employment –

(a) the employee may not exercise both the entitlement

conferred by paragraph (1) and the corresponding right, but

may, in requesting any change to his or her terms or

conditions of employment, rely on whichever of the

entitlement, or the right, is the more favourable; and

(b) if he or she relies, under sub-paragraph (a), upon such a

corresponding right as more favourable, the provisions

relating to an application under this Article shall apply,

subject to such modifications as may be necessary, in

Regulation 3

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201-

Page - 24 ◊ P.27/2018

relation to that right as though the exercise of it were such an

application.”.

(4) In Article 15B(5) –

(a) after the semi-colon at the end of sub-paragraph (e) there shall be

added the word “or”;

(b) in sub-paragraph (f) –

(i) for the semi-colon there shall be substituted a full stop, and

(ii) the word “or” shall be deleted; and

(c) sub-paragraph (g) shall be deleted.

3 Article 55A amended

In Article 55A(1), in the definition “compulsory maternity leave period” for the

number “2” there shall be substituted the number “6”.

4 Article 55B amended

(1) For Article 55B(1) and (2) there shall be substituted the following

paragraphs –

“(1) An employee in relation to whom this Article applies as provided

by paragraph (1A) or (1B) is entitled, subject to paragraph (2), to

be permitted by her or his employer to take time off during the

employee’s normal working hours for the purpose stated in either

paragraph (1A) or (1B), whichever is applicable.

(1A) This Article applies –

(a) in relation to an employee who –

(i) is pregnant, and

(ii) has made an ante-natal appointment;

(b) for the purpose of enabling the employee to keep that

appointment.

(1B) This Article applies –

(a) in relation to an employee who has a qualifying relationship

with a pregnant woman or her expected child;

(b) for the purpose of enabling the employee to accompany the

woman when she attends an ante-natal appointment in

Jersey.

(2) An employee is not entitled to take time off under paragraph (1)

unless, if the employer so requests, the employee produces for the

employer’s inspection –

(a) in the case of an employee to whom this Article applies by

virtue of paragraph (1A) –

(i) a certificate from a registered medical practitioner,

registered midwife or registered nurse stating that the

employee is pregnant, and

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201- Regulation 5

◊ Page - 25

P.27/2018

(ii) an appointment card or other document showing that

the ante-natal appointment has been made;

(b) in the case of an employee to whom this Article applies by

virtue of paragraph (1B) –

(i) a declaration, signed by the employee, to the effect

that the purpose of his or her absence from work will

be that specified in paragraph (1B)(b) and that he or

she has a qualifying relationship as required by

paragraph (1B)(a), and

(ii) such evidence that the ante-natal appointment has

been made as the employer may reasonably require.”.

(2) In paragraph (3) for the words “Paragraph (2)” there shall be substituted

the words “Paragraph (2)(a)”.

(3) For paragraphs (4) and (5) there shall be substituted the following

paragraph –

“(4) For the purposes of this Article –

(a) the normal working hours of an employee shall be taken to

be any time when, in accordance with the employee’s

contract of employment, the employee is normally required

to work;

(b) an ‘ante-natal appointment’ means an appointment made by

a pregnant woman, on the advice of a registered medical

practitioner, registered midwife or registered nurse, to attend

at any place for the purpose of receiving ante-natal care

(which does not include ante-natal classes to prepare the

woman for motherhood); and

(c) a person has a ‘qualifying relationship’ with a pregnant

woman or her expected child if the person is –

(i) married to, or the civil partner or partner of, the

pregnant woman, or

(ii) the father of the expected child.”.

5 Article 55C amended

(1) In Article 55C(1) after the words “under Article 55B” there shall be

inserted the words “for the purpose stated in paragraph (1A) of that

Article”.

(2) After Article 55C(1) there shall be inserted the following paragraph –

“(1A) An employee who is entitled to take time off under Article 55B for

the purpose stated in paragraph (1B) of that Article is entitled to be

paid remuneration by his or her employer –

(a) at the appropriate hourly rate; and

(b) for a total period (which need not be continuous) not

exceeding 10 hours,

Regulation 6

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201-

Page - 26 ◊ P.27/2018

whether or not the employer has permitted the employee to take the

time off.”.

(3) In Article 55C(4) for the words “paragraph (1)” there shall be substituted

the words “this Article”.

(4) In Article 55C(5) –

(a) for the words “under her contract” there shall be substituted the

words “under his or her contract”; and

(b) for the words “paragraph (1)” in each place in which they occur

there shall be substituted the words “this Article”.

6 Article 55D amended

(1) In Article 55D(1) for the word “permit” there shall be substituted the

word “require”.

(2) In Article 55D(2) –

(a) for the words preceding sub-paragraph (a) there shall be substituted

the words “An employee who would normally have been required,

under her contract of employment, to work during that period –”;

(b) in sub-paragraph (a) for the number “2” there shall be substituted

the number “6”.

(3) For Article 55D(3) there shall be substituted the following paragraph –

“(3) For the purposes of paragraph (2)(a), the appropriate weekly rate is

the amount of one week’s pay, calculated in accordance with

Schedule 1.”.

7 Article 55E amended

(1) For Article 55E(2) and (3) there shall be substituted the following

paragraph –

“(2) An employee who is entitled under paragraph (1) to ordinary

maternity leave is entitled to a total period of 20 weeks of such

leave (in addition to 6 weeks’ compulsory maternity leave).”.

(2) In Article 55E(5) –

(a) at the end of sub-paragraph (a) after the semi-colon, there shall be

added the word “and”;

(b) at the end of sub-paragraph (b) –

(i) for the semi-colon there shall be substituted a full stop, and

(ii) the word “and” shall be deleted; and

(c) sub-paragraph (c) shall be deleted.

8 Article 55I amended

(1) Article 55I(5) shall be deleted.

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201- Regulation 9

◊ Page - 27

P.27/2018

(2) In Article 55I(7) for the word “days’” there shall be substituted the word

“day’s”.

9 Article 55K amended

For Article 55K(3) to (5) there shall be substituted the following paragraphs –

“(3) Where the employer so requests, the employee must also provide

evidence in writing of the date specified in accordance with

paragraph (1)(c)(i) in the notice given to the employer.

(4) An employee who is entitled under paragraph (1) to adoption leave

is entitled to a total period of 26 weeks of such leave.

(4A) An employee who would normally have been required, under his

or her contract of employment, to work during the first 6 weeks’

period of his or her adoption leave –

(a) shall not be required to work by his or her employer;

(b) is entitled to be paid remuneration amounting to 6 weeks’

pay at the appropriate weekly rate;

(c) is entitled to the benefit of all of the terms and conditions of

employment which would have applied if he or she had not

been absent; and

(d) is bound by any obligations arising under those terms and

conditions (subject only to any exceptions in this Part),

during that 6 weeks’ period.

(4B) For the purposes of paragraph (4A)(b), the appropriate weekly rate

is the amount of one week’s pay, calculated in accordance with

Schedule 1.

(4C) Any remuneration paid to an employee under his or her contract of

employment in respect of a period of paid adoption leave under

paragraph (4A) goes towards discharging any liability of the

employer to pay remuneration under that paragraph in respect of

that period; and conversely, any payment of remuneration under

paragraph (4A) in respect of such a period goes towards

discharging any liability of the employer to pay remuneration

under the employee’s contract of employment in respect of that

period.

(4D) Any remuneration to be paid by an employer under paragraph (4A)

shall be reduced by any amount that the employee receives by way

of short term incapacity allowance under Article 15 of the Social

Security (Jersey) Law 19743 in respect of the period of paid

adoption leave.”.

10 Article 55M amended

In Article 55M for the words “55I(1), (2), (3), (4), (6) and (7)” there shall be

substituted the word “55I”.

Regulation 11

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201-

Page - 28 ◊ P.27/2018

11 Article 55N amended

(1) In Article 55N(1) for the words “a total of 2 weeks’ unpaid” there shall

be substituted the words “a total period of 26 weeks’ ”.

(2) After Article 55N(4) there shall be inserted the following paragraphs –

“(4A) An employee who would normally have been required, under his

or her contract of employment, to work during the first 2 weeks’

period of his or her parental leave –

(a) shall not be required to work by his or her employer;

(b) is entitled to be paid remuneration amounting to 2 weeks’

pay at the appropriate weekly rate;

(c) is entitled to the benefit of all of the terms and conditions of

employment which would have applied if he or she had not

been absent; and

(d) is bound by any obligations arising under those terms and

conditions (subject only to any exceptions in this Part),

during that 2 weeks’ period.

(4B) For the purposes of paragraph (4A)(b), the appropriate weekly rate

is the amount of one week’s pay, calculated in accordance with

Schedule 1.

(4C) Any remuneration paid to an employee under his or her contract of

employment in respect of a period of paid parental leave under

paragraph (4A) goes towards discharging any liability of the

employer to pay remuneration under that paragraph in respect of

that period; and conversely, any payment of remuneration under

paragraph (4A) in respect of such a period goes towards

discharging any liability of the employer to pay remuneration

under the employee’s contract of employment in respect of that

period.

(4D) Any remuneration to be paid by an employer under paragraph (4A)

shall be reduced by any amount that the employee receives by way

of short term incapacity allowance under Article 15 of the Social

Security (Jersey) Law 1974 in respect of the period of paid parental

leave.”.

12 Article 55O amended

(1) For Article 55O(1) there shall be substituted the following paragraph –

“(1) In the absence of any relevant agreement to more favourable effect

between the employer and the employee, an employee may choose

to take the 26 weeks of parental leave to which he or she is entitled

under Article 55N(1), in respect of any one child –

(a) in no more than 3 separate periods; and

(b) for no less than 2 weeks in the case of each such period.”.

(2) In Article 55O(2)(a) and (b) for the number “8” in each place in which it

occurs there shall be substituted the number “52”.

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201- Regulation 13

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13 New Article 55QA inserted

After Article 55Q there shall be inserted the following Article –

“55QA Arrangements during parental leave

Articles 55G, 55H, 55I and 55J shall apply to an employee who takes

parental leave in the same way as if the employee had taken ordinary

maternity leave.”.

14 Article 55S amended

For Article 55S(4) there shall be substituted the following paragraph –

“(4) For the purposes of paragraph (3), the ‘relevant date’ mentioned in

sub-paragraph (3)(a) is –

(a) in the case of an alleged contravention of Article 55B(1), the

date of the ante-natal appointment referred to in either

Article 55B(1A) or (1B) (whichever is the provision by

virtue of which Article 55B applies in the particular case);

(b) in the case of an alleged contravention of any of

Articles 55C(1) or (1A), 55D(2) or (3), 55K(4A) or (4B),

or 55N(4A) or (4B), the date which is 28 days after the date

on which the employee concerned would expect normally to

receive remuneration for the period during which he or she

is absent;

(c) in the case of an alleged contravention of Article 55D(1), the

date of the day immediately following the day on which the

compulsory maternity leave period ends;

(d) in the case of an alleged contravention of any of

Articles 55E(1) or (2), 55F(1), (4) or (6), 55G, 55I or 55J

(other than a contravention such as mentioned in sub-

paragraph (e)), the date of the day immediately following the

day on which the ordinary maternity leave period ends;

(e) in the case of an alleged contravention of rights connected

with the adoption of a child conferred by any of

Articles 55G, 55I, 55J (in each case as applied by

Article 55M) or 55K(1) or (4), the date of the day

immediately following the day on which the adoption leave

period ends;

(f) in the case of an alleged contravention of rights connected

with parental leave conferred by any of Articles 55G, 55I

or 55J (in each case as applied by Article 55QA) or 55N(1),

the date of the day immediately following the day on which

the parental leave period ends;

(g) in the case of an alleged contravention of any of

Articles 55O, 55P(4) or 55Q, the date of the day

immediately following the day on which there ends the

period of 52 weeks mentioned in sub-paragraph (a) or (b) of

Regulation 15

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201-

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Article 55O(2) (whichever is the provision applying in the

particular case).”.

15 Transitional provision

The amendments to the Employment (Jersey) Law 2003 made by Regulations 3

and 5 to 14, in so far as these relate to extended periods of maternity, adoption

or parental leave, shall have effect only in relation to employees whose

expected week of childbirth, or, as the case may be, of adoption begins on or

after 2nd September 2018.

16 Citation and commencement

These Regulations may be cited as the Employment (Amendment of Law)

(No. 2) (Jersey) Regulations 201-, and shall come into force on

1st September 2018.

Draft Employment (Amendment of Law) (No. 2) (Jersey)

Regulations 201- Endnotes

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1 chapter 05.255 2 chapter 05.255 3 chapter 26.900